Expert report dissects Lyman Good earnings as court case nears

April 18, 2019

The earnings of an MMA fighter can be hard and the Lyman Good case is exemplifying that the life in the cage may not be lucrative.

Good is currently suing the nutritional supplement company Gaspari Nutrition and Hi-Tech Pharmaceutical.  He claims caused him to fail a USADA drug test leaving him suspended and out of a payday.  The attorneys for the defendants retained an economic expert to assess the possible damages sustained by Good.

Through the discovery process, Dr. Henry Fuentes obtained Good’s tax return for 2011 and stated in a declaration that he was not provided any other complete returns for the fighter.  Dr. Fuentes studied Good’s returns and other information from the case in rendering the opinion that Good did not suffer economic damages based on his lawsuit.

Paul Gift’s Forbes article on Good’s breakdown of earnings also paints the picture of the meager earnings of Good.  Despite some successful years as a fighter, he’s also had some lean ones which is reflected in his tax returns and earnings (or lack thereof).

The breakdown of expenses has the most going to his agent (who is also his attorney in this lawsuit).  He also spends a lot on transportation.  The life of a full-time fighter is a hard one as they rely on paydays from fights as their main source of income.  According to the 2011 tax return, made money through fights and teaching martial arts classes. He did not have any other form of employment since 2009.  In 2011, Good had more unemployment compensation than anything and of the income, he had to spend most of it for training.

It should be noted that Good lists his Reebok royalties of $1,000.  The defense also concluded that Good made $77,236 in 2009,  That year, Good won the Bellator Welterweight World Championship. In 2017, Good made $65,471.  That year he only fought once but scored a $50,000 Fight of the Night bonus on the UFC on Fox 25 card for his bout against Elizeu Zaleski dos Santos.

Good’s attorney (who is also his manager) has filed a motion to preclude the expert report from the yet to be set trial.  If the court agrees, the expert report would not be considered as evidence in trial.

Payout Perspective:

The information is a glaring look at the unstable earnings of a fighter.  Unlike top-tier fighters, the report indicates that Good does not have steady income from sponsors or any other investments which might generate income.  This is one of the reasons why Stipe Miocic keeps his job as a fireman although its clear he could fight full-time.  Yet, for most fighters, they live from fight to fight to make a living.  MMA Payout will keep you posted on the trial.

Leslie Smith finds new home in Bellator MMA

April 16, 2019

Yahoo! Sports reports that former UFC fighter Leslie Smith has signed with Bellator MMA and plans to move to Featherweight.

Smith’s last scheduled fight was to be almost a year to the day in April 2018 when she was to meet Aspen Ladd in Atlantic City.  However, Ladd did not make weight and Smith did not take the fight at a catchweight.  As those following know, it was to be Smith’s last fight on  her contract but Zuffa decided to pay her show and win money and then call it good despite her only promotion loss to Cristiane Cyborg.

Smith and her attorney Lucas Middlebrook believe that were abrupt dismissal from the company was due to her leading Project Spearhead which sought to have a vote of UFC fighters to determine whether they were employees of the company instead of independent contractors.  Smith had made a case with the NLRB and despite initial optimism which was in favor of Smith’s claims, they were denied.

She now gets a new start after what will be over a year away from fighting.

The new situation should be good for Smith and a move to the more competitive Featherweight division should yield her attractive fights.  Julia Budd is the company’s featherweight champion at this time.

 Payout Perspective:

MMA Payout had the opportunity to speak with Smith and Middlebrook a couple months back.  Her return to fighting should help Bellator with any intent of building its women’s division.  She may be a polarizing figure depending on your view of her lobbying for fighters’ rights.  But through this, she has elevated her status as someone willing to speak her mind regardless of the ramifications.  We shall see whether she brings her Project Spearhead lobbying to Bellator.

Penn accused of verbal abuse, threats by estranged girlfriend; Penn responds

April 11, 2019

MMA Junkie reports that a restraining order has been issued against B.J. Penn by the mother of his children.  Shealen Uaiwa states that she has been verbally abused and “menaced” in front of their children. Uaiwa also claims that the former lightweight champion threatened to kill her family and sexually abused her.

In handwritten court records from Uaiwa obtained by MMA Junkie, she documents several disturbing episodes in which he verbally assaulted her mother and herself.  Although there is no claim of physical abuse, there appears to be a history of Penn’s aggressive verbal assaults against her and her family.

The retelling by Uaiwa states that she woke up one night scared “because he [Penn] got cocaine on my oldest daughter.”  She indicated that he wanted to commit suicide.

On Thursday Penn issued a statement via his web site:

“BJ is in a highly-contested child custody case involving his two young daughters. The order of protection has made serious allegations against BJ.  The allegations are so, misleading, hurtful and false that any further comment by BJ or about BJ would cause more damage to the well-being of his children and potentially further inflame the pending custody proceedings. BJ and his family ask that you respect their privacy at this very difficult time.”

Payout Perspective:

This is a tragic allegation against Penn and his response is less than clear on the situation.  While a custody battle is clearly a contentious situation, the allegations seem very specific.  One has to wonder about the former champ’s stability.  While we cannot conclude Penn has some sort of head trauma causing these actions, we also should not rule it out.  Penn has continued to fight despite being past his prime and I’m not sure if he were to stop whether he would know what to do after his MMA career.  MMA Payout will keep you posted.

The man whose cell phone was destroyed by Conor McGregor drops civil lawsuit

April 8, 2019

A lawsuit filed by the individual that had their cell phone destroyed by Conor McGregor in Miami has dropped his civil lawsuit against the UFC star.

TMZ reports that Ahmad Abdirzak, the 22-year-old man that had his phone destroyed by the former UFC featherweight and lightweight champion has likely settled his dispute with McGregor.  Tha man had sued McGregor for battery, assault and intentional infliction of emotional distress stemming from an incident earlier this month where McGregor was retained by police and subsequently released. His criminal case is still pending in Miami as he was charged with felony robbery and misdemeanor criminal mischief.

Payout Perspective:

McGregor’s team likely wanted to put this civil case to bed as the damages were minimal and settling this case out of court without a mess like the thrown can lawsuit or thrown dolly lawsuit.  As we know, McGregor has other legal troubles coming so this one was easy to put out relatively speaking.

Ahead of the biggest event of its year, WWE files TRO to protect its trademarks

April 5, 2019

As wrestling fans descend on New York for Wrestlemania weekend, the WWE has filed a preemptory complaint to ward off trademark infringers that may sell merchandise bearing trademarks owned by the company.

In a verified complaint filed in New York, it requested that the Court issue a temporary restraining order and seizure against sales of goods with counterfeit marks.  Essentially this would enable the WWE to immediately stop the bootleg sale of goods on the spot.

As a part of the request, WWE has included a schedule of its 2019-2020 live events schedule to obtain relief for the rest of the year.  It claims that it has encountered counterfeiters at other events and requests the Court’s order.

Complaint by on Scribd

The WWE brings up the fact that when it held Wrestlemania in New Jersey in 2013, it requested and was granted the same thing.

As for why it needs an order to confiscate counterfeit merchandise, the WWE cites the poor quality of the knockoffs.  Since this motion was done without naming defendants, it felt the need to let the court know of several cases that the court denied in the past.  This included the questions of why the WWE could not name defendants and the potential for a lack of jurisdiction as a result.

Payout Perspective:

As one might expect, the WWE aggressively protects its trademarks and with a huge event such as Wrestlemania, it’s clear that they do not want anything or anyone to get in their way including those that may want to make some money off of their name

Mark Hunt files Notice of Appeal in his lawsuit against UFC, White and Lesnar

March 25, 2019

Mark Hunt has filed a Notice of Appeal to the 9th Circuit for a potential reversal of the District Court’s decision to decision 9 out of 10 of his claims in his lawsuit filed against the UFC, Dana White and Brock Lesnar.

Plaintiffs are seeking the overturn of the Court’s decision handed out on February 22nd in which U.S. District Court Judge Jennifer A. Dorsey dismissed 9 out of 10 claims brought by the UFC Heavyweight.  Among the claims, he brought allegations under the Civil RICO Act arguing that the UFC had conspired to allow fighters that use banned substances to compete in the UFC.  It also claimed that Brock Lesnar was guilty of battery as Hunt did not assume the risk of fighting an opponent on a banned substance.

The Court dismissed the claims citing no conspiracy and that Hunt had conceded to the involvement in the fight with Lesnar despite the failed drug test by the WWE performer.  The Court indicated that there was nothing out of the norm of ordinary activity in an MMA bout.

Payout Perspective:

While I believed that this fight in the courts would end in a win for the UFC, the Plaintiffs have appealed the decision which will cause a longer process for resolution.  Yet, if you are to look at this case from a legal precedent perspective, there seems to be an argument to be made with Hunt’s assumption of the risk in this case.  MMA Payout will keep you posted.

Loss of supplement bottle at center of Motion to Dismiss Lyman Good’s case

March 22, 2019

The drug maker and distributor in Lyman Good’s lawsuit for a tainted supplement brought a motion to dismiss his claims for spoliation of evidence last month.  The UFC fighter took a supplement which caused him to fail a USADA drug test and miss out on a bout.  The motion to dismiss claims that Good and/or his lawyer did not retain the alleged supplement which caused the failed test.

Good’s lawyer and fight manager David Fish indicated that it was lost in the mail after it was sent to a laboratory for testing.  However, the drug maker and distributor contend that this is a false narrative.

Defendants Gaspari Nutrition, Inc., Hi-Tech Pharmaceuticals, Inc., and Vitamin Shoppe, Inc.   have brought this motion for spoliation of evidence.  The motion is based on the discovery rules which allows for the dismissal of a lawsuit if a party does not preserve evidence.  According to Good, the remedy is an extreme one as the fighter’s attorney argued that the “missing Anavite bottle” is not the key piece of evidence and is not the ultimate question for the trier of fact.

The elements for destruction of evidence are:

  1. That the party having control over the evidence had an obligation to preserve it at the time it was destroyed;
  2. That the records were destroyed “with a culpable state of mind”;
  3. That the destroyed evidence was “relevant” to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

“Culpable state of mind” essentially means that there was knowledge and intent to destroy the evidence.  Even if there was mere negligence on the part of the party, it would still qualify.

In its opposition to the moving papers, Good argues that there is nothing to justify dismissal of his lawsuit due to the allegations of “spoliation” of evidence.  He further argues that the “missing Anavite bottle” is not essential to the heart of the lawsuit. Calling it a “red herring” Good argues that the identity of the manufacturer of the product and the existence of a product defect are issues of fact capable to prove via circumstantial evidence.  This would mean that Good could prove the defect even if the actual bottle of alleged tainted product was not present.

In its moving papers, defendants point to Good’s initial argument that it had sent a bottle of Anavite to be analyzed by LGC Science, Inc. (“LGC”). Per defendants, LGC could not identify the anabolic steroid despite representations by Good in his first lawsuit that it did.  It was not until LGC corrected Good did he change his lawsuit to reflect this.  The episode infers a pattern by Good of not stating the truth.  If a court were to accept such an argument, it may side with defendants in dismissing the case.

Defendants also point to the fact that Good did not list the use of Anavite on his USADA “Declaration of Use” form.  Even when he clarified his form to include another supplement, Anavite was not listed.  Defendants create the suspicion based on these “lapses of memory” that Good was selectively recalling information for his benefit.

The misplacement of the bottle of Anavite by Good is called into question as when it was requested of Good, he indicated that he gave the bottle to his attorney and manager David Fish.  Fish indicated that he had it and sent it to counsel for testing but it was never received.

Defendants proclaim this to be a case of spoliation of evidence where Good has destroyed the Anavite bottle on purpose to ensure that it would not be tested.

Defendant Vitamin Shoppe argued that Good could not establish the manufacture of the product ingested could not be identified by “circumstantial evidence” as argued.

While the defendants had claimed that Good’s attorney should recuse himself due to the loss of the evidence, they backed off from this threat claiming that it would cause an undue hardship on Good.  Still, the dismissal of the case would be another extreme measure if they can convince a court that the loss of the bottle is central to the lawsuit.

Certainly, the lack of product may have been evidence which defendants could have tested and mitigated their liability.  If it was found not to have the banned substance, they would be not liable.  If it had the banned substance, they can assess the origins of it determine its origins.

Since the Motion to Dismiss was filed, Good has filed a motion to preclude the defendant’s experts which would exclude their testimony at the time of trial.  This is in anticipation of the Court denying the motion and the case moving to trial.

This would seem to be a safe assumption.  The Motion to Dismiss is a home run in this instance.  While the rules for destruction of evidence has dismissal of the case as a repercussion.  This does not seem to be what has happened here.  Although defendants make the argument that even gross negligence should be considered as a means of spoliation with intent, the Court will likely side with Good here.

Disgruntled May-Pac fans get oral argument in appeals court

March 12, 2019

On March 7th, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in the appeal of the lawsuit brought by plaintiffs that purchased the Floyd Mayweather-Manny Pacquiao in May 2015.  The case was dismissed but appealed by the plaintiffs.

The underlying facts of the lawsuit brought by multiple individuals and consolidated into one case claim that they were victims of fraud when they purchased tickets and/or PPV for the fight without the knowledge that Pacquiao had an injured shoulder.  The details of the dismissal of the lawsuit were covered by MPO this past September.

Three parties representing the plaintiffs, the defendants including HBO and Showtime and separate counsel for defendant Floyd Mayweather and his company argued their briefs before the Night Circuit.

The appeal came down to two differing theories.  Plaintiffs viewpoint that the case is a consumer protection action where fans were duped into thinking that they were purchasing tickets and/or a $100 PPV to watch a healthy Paquiao and Mayweather.  But it was not revealed that Pacquiao was fighting with a significant injury.  As a result, consumers were taken advantage of by the promoters and those with business interests tied to the event.  Plaintiffs, in part, infer that the defendants were not going to cancel or postpone the event regardless of Pacquiao’s condition.

Defendants maintain the District Court ruling and uphold the ruling that the case is premised upon a revocable license.  The fans paid for what they received and despite the fact that they did not get the fight they wanted, they received the fight that they paid for.

The appellate court seemed to probe the question of whether Charpentier could be distinguished from this case based on the business-side of sports.  Charpentier was premised upon the fact that in the mid-1990s the Los Angeles Rams franchise was leaving for St. Louis, and despite its knowledge that it would, stated that it was staying.  While in Pacquiao, he indicated that he felt fine going into the fight, Mayweather asserted he knew everything within his opponent’s camp yet did not speak about a shoulder injury pre or post-fight.  HBO and Showtime did not claim to know about a pre-existing injury and promoted the fight as the Fight of the Century  It believed it to be so big that it set the ticket prices and PPV price point at astronomical prices.

Hart Robinovitch, arguing on behalf of the plaintiffs, stressed that facts were intentionally concealed from consumers set against the backdrop upon quotes from commentators inferring that the fight less that what was expected.  He portrayed the plaintiffs as the little guy that paid big prices for the event.

The Court asked about where the line might be drawn on a failure to disclose theory, here the omission of Pacquiao’s injury, where it is common that athletes play with injuries at all times.  Plaintiffs argued that the failure to disclose Pacquiao’s injury was material to this case.  Notably, Pacquiao did not publicly disclose the injury until 30 minutes into the PPV based on his request to the commission for a pain reliever for his shoulder. The Court grilled Robinivitch on the claim that Pacquiao omitted any claim of injury prior to the fight.  But, premised upon the omission, there must be a duty to disclose.  The Court also asked about “puffery” claims made by athletes (i.e., “I feel great,”) and whether something like this would give rise to a claim.

Plaintiffs argue that the license approach is premised on a contract claim, which differs from what it is arguing here.

They claim that the district court erred when it did not interpret Plaintiffs claim that Pacquiao concealed his injury for the sole business reason of making money.  Plaintiffs argue that there is a material fact, which cannot be dismissed on a Motion to Dismiss stage.

During oral arguments, Plaintiffs stressed the Charpentier case which was central to its case.  The case was brought by Los Angeles Rams season ticket holders that claimed the franchise publicly denied moving while concealing material facts that its intention was to move.   The court in that case stated, “Defendant knew these statements were false, but defendant made them purely to maintain and manipulate the sales of tickets.”  In that lawsuit, the court dismissed the contract-based claims but maintained the plaintiffs’ fraud claim.  The distinction is important when set upon the footprint of the Pacquiao case because plaintiffs argue that the material misrepresentation of Pacquiao’s injury in addition to the affirmations that he was fine is sufficient for this case to go forward.

While the question of disclosing an athlete’s injury is a debatable question, Plaintiffs cited the NFL’s policy of injury reports which discloses the nature and reason a player does not practice in the week prior to the game.  It notes this as an example of an affirmative

Daniel Petrocelli represented the defendants except the Mayweather defendants.  He argued that there are reasons why an athlete’s private health information is not disclosed.  First, there is a right to privacy issue regarding health issues.  Second, there should not be an expectation to know an up-to-date status of an athlete’s physical condition.  Finally, its common knowledge that boxers do fight with injuries.

The Court questioned Petrocelli if whether there are cases where there are material misrepresentations or omissions that give rise to a consumer claim.  But, Petrocelli argued that the cases are segmented between off the field business cases versus athletic case.  He argued Charpentier was based on the misrepresentation of the business aspect of sport and differed from Pacquiao’s shoulder.  He claimed that the case was extrinsic to the case and this was where the line can be drawn.  He gave the example of an announcement that a team had signed LeBron James and consumers made purchases based on the representation but in actuality it was another individual, not the famous basketball player.  In that instance, would there be an issue regarding a material misrepresentation.

While the Court did not side with either about the ultimate question of the veracity of the case, it did question Petrocelli if there were material facts about the omission of Pacquiao’s injury with respect to whether or not consumers were defrauded.

Mark Tratos, the attorney for Defendants representing Manny Pacquiao, Bob Arum, Todd duBoef, Top Rank, Inc. and HBO argued that the district court correctly dismissed the lawsuit arguing that the license approach applied.  They also claimed that there is no carve-out exception to the license approach where there is a fraudulent inducement to purchase an event.

Notably, the Defendants argued an alternative scenario in which Pacquiao was cleared by the Nevada State Athletic Commission which would relieve any liability on behalf of the defendants since a third party allowed the fight to occur.  This would place some level of liability on the commission.

During oral arguments, Tratos argued a floodgates of litigation scenario if there is a duty of a fighter to disclose an opponent injury.  The implication here would be that it would be implausible for a fighter to know whether or not there is a pre-fight injury of an opponent.  But there would be hundreds of lawsuits filed if there was an affirmative duty for a fighter to know another’s injury.

Payout Perspective:

One can expect an opinion in this case later this year.  If the court were to side with Plaintiffs, it would go back to the district court and continue as the lawsuit was dismissed just at the pleading stage.  If it sides with the defendants, the case would likely go away.  While most from the outside would see this as an easy case to decide in favor of the defendants, it brings up interesting theories with respect to consumer fraud.

Plaintiffs claim that there are material facts that would overcome a motion to dismiss the case purely on the filed lawsuit.  This is the initial goal of the Plaintiffs. Will this actual happen?  It would be surprising.  The Court seemed to wrestle with the necessity of disclosing an athlete’s injury prior to an event.  While Plaintiffs attempt to carve out the analytical argument that Pacquiao’s omission of disclosing the injury to generate sales as a business reason which would buttress its fraud claim, defendants argue that this is purely athletic strategy.  Defendants note that consumers are only entitled to watch an event and cannot dictate if its exciting or not.  It stresses that Pacquiao fought all 12 rounds and even won certain rounds based on the scorecards.  The cases argued before the court are carved out between a license approach (fans entitled to watch an event and nothing more) and those which follow the Los Angeles Rams case (Charpentier) where the court allowed a fraud claim when the Rams misrepresented that it would not move but did.  It does seem that the case will be decided upon whether there is a belief that there are material facts to determine whether the defendants had a duty to disclose the alleged injury.

The Court will be setting a new precedent when it decides this case as it will guide future lawsuits where sports fans feel duped by sports teams and/or events.

Conor McGregor arrested in Miami

March 11, 2019

Conor McGregor was arrested in Miami Monday morning according to the Miami Beach Police Department.

McGregor was charged for strong arm robbery and criminal mischief which are both felonies.  According to the arrest affidavit, McGregor and the victim were at the Fontainebleau Hotel in Miami.  When McGregor left, the victim attempted to take a picture with him with his cell phone.  McGregor knocked the phone out of his hand, stomped on the phone several times and then took it away from him.  The victim claims that the phone was worth $1,000.

MMA Fighting has obtained a statement from McGregor’s attorney in which he describes the incident as a “minor altercation.”

Payout Perspective:

This incident seems minimal compared to the bus incident in New Jersey last year.  Yet, the piling on of criminal incidents cannot sit well with authorities.  There’s likely a story from McGregor about the reason for what he did.  One has to assume that McGregor will not be punished extensively for this so long as he pays for the damage.

Matt Hughes’ wife details alleged domestic abuse in court filing

March 6, 2019

Disturbing details are emerging from a Verified Petition for Order of Protection filed by the wife of UFC Hall of Famer Matt Hughes stemming from allegations of domestic violence.  Hughes’ wife, Audra Hughes, claims that the former UFC champion physically hit her.

The petition filed in Hillsboro, Illinois states that Hughes hit his wife in front of his children and his father-in-law.  On another occasion, he allegedly threatened to shoot her.  And in another occasion, Hughes choked his wife in the shower after he prevented her from driving.

The details, obtained by MMA Junkie, indicate that Audra believed that Hughes was communicating with other women.

Hughes has denied the claims in the petition which was granted in December 2018.  It was extended in February to May 2019.  Hughes filed for divorce in February.

Hughes was the victim of tractor accident in June 2017 and suffered life-threatening injuries.  He returned to the UFC to make an appearance in January 2018 when the UFC visited St. Louis.

The circumstances behind the restraining order and filing for divorce are disappointing for what was (from the outsider) was a great story of Hughes returning from a near-death accident.  However, the allegations show another side of the Hall of Famer and very concerning for Hughes and his family.

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